Citation Nr: 0101600
Decision Date: 01/22/01 Archive Date: 01/31/01
DOCKET NO. 98-06 661A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to an increased evaluation for post operative
residuals of right knee injury, consisting of impairment
other than traumatic arthritis and limitation of motion,
currently rated 30 percent disabling.
2. Entitlement to a separate compensable rating for post
operative residuals of a right knee injury consisting of
traumatic arthritis and limitation of motion.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
ATTORNEY FOR THE BOARD
D. Schechter, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1973 to April
1974.
The appeal arises from the March 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, granting an increased rating
from 20 to 30 percent for post operative residuals of right
knee injury. The second issue noted on the title page is an
inferred issue which arises from two VA General Counsel
Opinions in July 1997 and August 1998.
FINDINGS OF FACT
1. Post operative residuals of right knee injury other than
traumatic arthritis and limitation of motion consist
essentially of severe instability requiring occasional use of
a knee brace, but do not result in any degree of ankylosis of
the knee.
2. The veteran's post operative residuals of knee injury
also consist of traumatic arthritis with painful motion of
the knee.
CONCLUSIONS OF LAW
1. A rating in excess of 30 percent for post operative
residuals of right knee injury consisting of impairment other
than traumatic arthritis and limitation of motion is not
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp
2000); 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257 (2000).
2. A separate 10 percent rating is warranted for post
operative residuals of right knee injury consisting of
traumatic arthritis and painful motion of the knee.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp 2000); 38 C.F.R.
§§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010
(2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
May 1976 VA X-rays of the right knee showed slight sharpening
of the articular margins and possible minimal narrowing of
the joint spaces.
In October 1986 the veteran underwent VA hospitalization with
arthroscopy and partial medial meniscectomy to treat right
knee pain and swelling with episodes of clicking and locking.
February 1997 X-rays of the right knee did not show joint
effusion. However, there was spurring of the tibial spine
and an apparent small fragment just anterior and medial to
the medial tibial spine.
The claims folder contains records received from Orthopedic
Group of Concord, Pennsylvania, including records of private
evaluation and treatment for the right knee disorder in
September 1997. Upon examination, the veteran was stable to
varus and valgus stress, though the veteran reported that his
knee would give way with daily activities, with giving way
episodes leading to knee pain and some swelling. Also upon
examination, there was mild to moderate right quadriceps
atrophy, exquisite medial patellar facet tenderness, and
trace effusion. It was noted that the veteran had not
attempted physical therapy. The treating physician
prescribed a functional brace and strengthening exercises.
At a December 1997 VA examination, the claims folder was not
available for review. The veteran reported a history of
injury of the right knee in 1974, with arthroscopic surgery
performed in approximately 1987, and constant pain
thereafter, more severe in the past two years. He reported
that he had to use a hinged brace all the time due to giving
way of the joint which almost made him fall nearly every day.
The veteran reportedly produced for the examiner a private X-
ray report and medical opinion that a surgical revision was
necessary due to an anterior cruciate ligament / posterior
cruciate ligament (ACL/PCL) rupture. The veteran complained
that his constant right knee pain was aggravated by any
ambulation, preventing any kind of employment. The veteran
reported that he avoided taking medication in part because it
did not greatly help him. Upon examination, the veteran
limped and wore a hinged brace on the right knee. There was
no swelling or deformity of the right knee, and range of
motion was from zero degrees extension to 130 degrees
flexion, with painful flexion. There was acute tenderness to
palpation above the patella. Anterior drawer sign was
positive; McMurray's was negative. The veteran could not
bear weight or squat due to right knee pain. The examiner
diagnosed post operative right knee injury with recent acute
ACL/PCL rupture.
At an October 1999 VA examination, the veteran's history of
right knee disability was noted. The veteran reported that
he had pain in the right knee, with giving way of the knee
approximately once or twice monthly which occasionally caused
him to fall. He reported that he sometimes used a knee
brace, and that any weight bearing aggravated his knee pain.
However, he stated that he took no prescription medication
for the knee, and only took over-the-counter medication such
as Tylenol for his knee approximately once per week. He
reported that he had learned to protect himself from things
that caused pain in his knee. On examination, there was mild
generalized hypertrophy of the right knee joint, with pain
around the patella, and a positive drawer sign. McMurray and
Lachman signs were negative. There was no loss of motion,
though maximal flexion caused pain at 140 degrees. The
veteran was unable to squat. The veteran had no history of
flare-ups in the right knee, and the examiner concluded on
that basis that the veteran had no additional limitation of
motion due to pain. The veteran reported that he could not
work due to disabilities of both the back and right knee,
adding that he was only able to perform such activities as
cutting the grass in his yard, which activities left him sore
and stiff. The examiner diagnosed post operative right knee
injury.
The veteran received VA outpatient treatment for his right
knee in December 1999. A history was noted of right knee
surgery. The veteran reported pain radiating from the right
knee down to the ankle. He reported that the knee slipped
out of place at times. He reported having knee pain for the
last several years, with the pain present intermittently. He
complained that his knee pain was currently a "10". The
veteran had a knee brace and the knee was warm. On
examination, the veteran was in no apparent distress. He
walked with a limp. The knee was tender over the medial
joint line. Hyperextension was painful. The examiner
assessed right knee pain, and right ligament/meniscal injury.
Analysis
Under applicable criteria, disability evaluations are
determined by the application of a schedule of ratings based
on average impairment of earning capacity. 38 U.S.C.A. §
1155. In evaluating service-connected disabilities, the
Board looks to functional impairment. The Board attempts to
determine the extent to which a service-connected disability
adversely affects the ability of the body to function under
the ordinary conditions of daily life, including employment.
38 C.F.R. §§ 4.2, 4.10 (2000).
Disabilities of the knees, including subluxation and lateral
instability, are rated under Diagnostic Code 5257. Under
that Code, with slight recurrent disability of the knee, a 10
percent rating is assigned; moderate recurrent disability of
the knee is rated 20 percent disabling; and severe disability
of the knee is rated 30 percent disabling. 38 C.F.R. §
4.71a, Diagnostic Code 5257 (2000).
Where ankylosis is present, a knee disorder is ratable under
Diagnostic Code 5256. Under that Code, where the knee is
ankylosed at a favorable angle in full extension, or in
slight flexion between zero and 10 degrees, a 30 percent
rating is assigned. Where the knee is ankylosed in flexion
between 10 degrees and 20 degrees, a 40 percent rating is
assigned. Where the knee is ankylosed in flexion between 20
and 45 degrees, a 50 percent rating is assigned. Where
ankylosis of the knee is extremely unfavorable, in flexion at
an angle of 45 degrees or more, a 60 percent rating is
assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2000).
Knee disorders may be rated on the basis of limitation of
flexion or limitation of extension, under Diagnostic Codes
5260 and 5261, respectively. A full range of motion of the
knee is zero degrees of extension to 140 degrees of flexion.
38 C.F.R. § 4.71, Plate II (2000). A zero percent rating is
provided where flexion of the knee is limited to 60 degrees.
A compensable (10 percent) rating on the basis of limitation
of flexion is warranted with flexion limited to 45 degrees; a
20 percent rating is warranted with flexion limited to 30
degrees; and a 30 percent rating is warranted with flexion
limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code
5260 (2000). A zero percent rating is provided where
extension of the knee is limited to five degrees. A
compensable (10 percent) rating on the basis of limitation of
extension is warranted with extension limited to 10 degrees;
a 20 percent rating is warranted with extension limited to
15 degrees; a 30 percent rating is warranted with extension
limited to 20 degrees; a 40 percent rating is warranted with
extension limited to 30 degrees; and a 50 percent rating is
warranted with extension limited to 45 degrees. 38 C.F.R.
§ 4.71a, Diagnostic Code 5261 (2000).
When reviewing the level of disability due to a service-
connected disability affecting a joint, when the rating is
based on limitation of motion, the Board must consider an
increased schedular rating based on functional loss due to
pain on undertaking motion, weakened movement, fatigability,
and incoordination. 38 C.F.R. §§ 4.40 and 4.45 (2000);
DeLuca v. Brown, 8 Vet.App. 202 (1995).
In addition, the Board points out that separate disability
ratings may be assignable for knee disabilities. In a VA
General Counsel Opinion, VAOPGCPREC 23-97 (July 1, 1997), it
was held that arthritis and instability of the knee may be
rated separately under Diagnostic Codes 5003 (5010), for
limitation of motion, and under Diagnostic Code 5257, for
other disability of the knee including subluxation or lateral
instability. Also, VAOPGCPREC 9-98 (August 14, 1998)
indicates that when a knee disability is rated under
Diagnostic Code 5257 it is not required that the claimant
have compensable limitation of motion under Diagnostic Code
5260 or 5261 in order to obtain a separate rating for
arthritis. It is only required that the claimant's degree of
limitation of motion meet at least the criteria for a zero-
percent rating or that there be painful motion of the knee.
The veteran's right knee disability has been rated under
Diagnostic Code 5257, for recurrent subluxation and/or
lateral instability. A 30 percent rating, for severe
disability, has been assigned. This is the highest schedular
rating that may be assigned under Diagnostic Code 5257.
Higher ratings of 40 percent, 50 percent, and 60 percent are
provided if the required degrees of ankylosis are present in
the knee as set forth in Diagnostic Code 5256. This veteran
does not have any degree of ankylosis of the right knee.
Accordingly, he is not entitled to a higher rating for knee
impairment other than on the basis of traumatic arthritis and
limitation of motion.
The Board has noted that there is X-ray evidence of traumatic
arthritis of the right knee, shown to be present on February
1997 X-rays. The veteran has a full range of motion of the
right knee, but it is also clear that right knee motion is
painful. That being the case, the provisions of 38 C.F.R.
§ 4.59 and the above noted General Counsel Opinions in July
1997 and August 1998 warrant a separate 10 percent rating for
traumatic arthritis of the right knee with limitation of
(painful) motion. Consideration of the provisions of
38 C.F.R. §§ 4.40, 4.45, and the decision of the Court in
DeLuca v. Brown, do not warrant a rating in excess of 10
percent for traumatic arthritis of the right knee with
painful motion, because this component of the veteran's right
knee disability does not involve additional functional loss
due to pain on undertaking motion, weakened movement,
fatigability, or incoordination.
ORDER
1. Entitlement to an increased rating above the 30 percent
currently assigned for post operative residuals of a right
knee injury consisting of impairment other than traumatic
arthritis and limitation of motion is denied.
2. A separate, 10 percent rating is granted for post
operative residuals of a right knee injury consisting of
traumatic arthritis and limitation of motion, subject to the
law and regulations governing the payment of monetary awards.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals